The Ideological Consequences of Selection: A Nationwide Study of the Methods of Selecting Judges

Article excerpt

Introduction

How best to select judges has been the subject of great debate ever since the founding of the United States. Over the course of American history, four basic methods of selection have been tried (with some variations among them): appointment by elected officials, partisan election, nonpartisan election, and selection by a technocratic commission.1 The first three methods will be familiar to most readers: gubernatorial or legislative appointment of judges, contested elections with party affiliation on the ballot, and contested elections without party affiliation on the ballot. But readers may be less familiar with the last method: many states today use unelected commissions often comprised largely of lawyers selected by the state bar to nominate judges to the governor, who must appoint one of the commission's nominees; in many of these states, the judges later run for retention only in a yes-no referendum with no opponent.2 Commentators and scholars have long debated which of these methods creates judiciaries with, for example, the greatest technical capabilities, the most independence and accountability, and the widest demographic diversity.3

Until an article I published in the Missouri Law Review a few years ago,4 however, scholars had never asked whether there are any ideological consequences to employing one selection method versus another. Might one method lead to judges who are more liberal or more conservative than other methods? Might this then lead to decisions from those courts that are more liberal or conservative than decisions from courts selected by different methods? In my Missouri Law Review piece, I hypothesized that one of these methods-selection by a technocratic commission-might very well create judiciaries that are systematically more liberal than the others.5 I gave two reasons for this hypothesis. First, in many states that use the commission method (also called the "Missouri Plan," after the first state to adopt it, or "merit selection," as its proponents like to refer to it), lawyers' organizations have control (or at least outsized influence) over the commissions.6 Lawyers as a group are more liberal than the public at large,7 and, I suggested, because those who select judges probably care about the decisions those judges will reach and know those decisions are correlated with the judges' own ideological preferences,8 these lawyerheavy commissions might very well pick more liberal judges than the public or an elected official might have picked.9 Second, I thought that, even if the commissions put aside all considerations of how they hope judges will decide cases, the use of commissions might still have ideological consequences because, again, lawyers are thought to be more liberal than average, and picking judges from their lot without regard to their ideological preferences might skew judiciaries to the left so long as governors and the public do not put such considerations to the side.10 At the time I published my Missouri Law Review piece there was, frankly, not very good evidence that lawyers were more liberal than the general population (even though it was conventional wisdom),11 but the conventional wisdom has now been bolstered by a rigorous paper by Adam Bonica, Adam Chilton, and Maya Sen.12 They ran the Martindale-Hubbell Law Directory in 2012 through the databases on campaign contributions and found that "American lawyers lean to the left of the ideological spectrum."13

In my article, I looked at two states that used the commission method and compared the ideological preferences of the judges proposed by the commissions to the ideological preferences of the public in those states.14 I found, using common proxies for ideological preferences, that the judges proposed by commissions in those states did appear to be quite a bit more to the left than the public at large was in those states.15

The study I published in the Missouri Law Review had several limitations. …